Elder Law FAQ

What is elder law?

Elder Law encompasses many different fields of law. Some of these include:

  1. Preservation/transfer of assets seeking to avoid spousal impoverishment when a spouse enters a nursing home
  2. Medicaid
  3. Medicare claims and appeals
  4. Social security and disability claims and appeals
  5. Supplemental and long term health insurance issues
  6. Disability planning, including use of durable powers of attorney, living trusts, “living wills,” for financial management and health care decisions, and other means of delegating management and decision-making to another in case of incompetency or incapacity
  7. Conservatorships and guardianships
  8. Estate planning, including planning for the management of one’s estate during life and its disposition on death through the use of trusts, wills and other planning documents; accomplishing your personal and family goals and easing the management of your financial and legal affairs, as well as minimizing taxes if your estate is large enough for taxes to be of concern
  9. Probate Administration and management of trusts and estates
  10. Long-term care placements in nursing home and life care communities
  11. Nursing home issues including questions of patients’ rights and nursing home quality
  12. Elder abuse and fraud recovery cases
  13. Housing issues, including discrimination and home equity conversions
  14. Age discrimination in employment
  15. Retirement, including public and private retirement benefits, survivor benefits and pension benefits
  16. Health law
  17. Mental health law

Most elder law attorneys do not practice in every one of these areas. So when an attorney says he practices Elder Law, find out which of these matters he/she handles. You will want to hire the attorney who regularly handles matters in the area of concern in your particular case and who will know enough about the other fields to question whether the action being taken might be affected by laws in any of the other areas of law on the list. For example, if you are going to rewrite your will and your spouse is ill, the estate planner needs to know enough about Medicaid to know whether it is an issue with regard to your spouse’s inheritance.

Why hire an elder law attorney?

Attorneys who primarily work with the elderly bring more to their practice than an expertise in the appropriate area of law. They bring to their practice a knowledge of the elderly that allows them and their staff to ignore the myths relating to aging and the competence of the elderly. At the same time, they will take into account and empathize with some of the true physical and mental difficulties that often accompany the aging process.

Their understanding of the afflictions of the aged allows them to determine more easily the difference between the physical versus the mental disability of a client. They are more aware of real life problems, health and otherwise, that tend to crop up as persons age. They are tied into a formal or informal system of social workers, psychologists and other elder care professionals who may be of assistance to you. All of these things will hopefully make you more comfortable when dealing with them and ease your way as you try to resolve your legal problem.

What is a power of attorney?

A power of attorney is a document authorizing someone else (your agent) to act on your behalf (the principal). The purpose of giving someone such a power in connection with your estate planning is to enable the agent to act on your behalf when you cannot act for yourself.  A power of attorney prepared by an elder law attorney will typically contain special provisions allowing your agent to engage in Asset Protection Planning and Public Benefits Plannings on your behalf, including the ability to make unlimited uncompensated transfers in an effort to protect your assets from the forced liquidation that might otherwise be required if you were to enter a nursing home.

Who can create a power of attorney?

Generally, any individual can create a power of attorney if over 18 years of age, a resident of the state in which it is created, and legally competent. This, however, varies from state to state.

Who may act as an agent under a power of attorney?

In general, an agent may be anyone who is legally competent and over the age of 18. Usually, it is a family member such as a spouse or a child. More than one person can be named as an agent. However, sometimes naming two or more individuals to act together can prove inconvenient, particularly if a power of attorney must be exercised promptly. A better course is to name one individual as agent and then another as an alternate

What is the difference between a general and a limited power of attorney?

A general power of attorney authorizes your agent to do almost everything on your behalf which you could do for yourself. A limited or special power of attorney authorizes your agent to perform only certain acts specifically listed in the document.

How does an agent use a power of attorney?

Your agent presents the power to the other party involved in the transaction and signs any necessary documents needed for such transactions on your behalf. Your agent signs “Your Name, by His or Her Own Name, Attorney-in-Fact for Your Name.”

What are the formalities of signing a power of attorney?

Requirements vary from state to state, but in Virginia signing the power in the presence of a notary is necessary.

When does a power of attorney become effective?

This depends upon what the power says. It can be made effective at the time of signing or it can become effective at the time of your incapacity.

What is a “durable” power of attorney?

All powers of attorney done in connection with estate planning are “durable.” A durable power of attorney is simply a power of attorney that remains effective even if you become incapacitated. Generally, unless the power of attorney document specifically indicates it is durable, it is not durable and will terminate upon your incapacity. A non-durable power of attorney would, of course, be useless in connection with estate planning or disability planning.

Should I have a general power of attorney?

Yes. Everyone doing estate planning should execute a durable general power of attorney for financial, property, and legal affairs. This document is also often used in conjunction with a revocable living trust to enable your agent to transfer your assets into your trust in the event you become disabled. A general power of attorney can be made effective immediately upon being signed or can become effective at the time of your incapacity, which is also called a “springing” power of attorney.

What is the main reason for having a general power of attorney?

A general power of attorney is a much better way to deal with incapacity than a guardianship or conservatorship. If you become disabled, A general power of attorney authorizes your agent to act on your behalf and sign your name to financial and/or legal documents. Having a general power of attorney will generally avoid the need to go through the time consuming, expensive, and publicly embarrassing process whereby someone has to go to court to have you declared mentally or physically incompetent and then seek appointment to serve as your legal guardian and/or conservator subject to ongoing court supervision.

Should I have a power of attorney for health care?

Yes, it is equally important to have a health care power of attorney, to make decisions with respect to your medical care in the event that you are physically or mentally unable to do so, as certified by two physicians. This document includes the type of provisions that used to be in what was commonly called a “Living Will,” allowing you to indicate your wishes concerning the use of artificial or extraordinary measures to prolong your life artificially in the event of a terminal illness or injury. You will also use this document to indicate your wishes with regard to organ donation, disposition of bodily remains, and funeral arrangements.

How does a power of attorney terminate?

Death revokes a power of attorney. You may also cancel your power of attorney by signing a revocation. The best way to revoke a power of attorney is to destroy all copies. If the power is a non-durable power of attorney it will terminate upon your incapacity, while a durable power of attorney survives your incapacity.

Under a power of attorney, can my agent make a gift on my behalf?

Yes, but your power of attorney must specifically authorize your agent to make gifts from your assets to persons whom you would likely make gifts.  This is one area in which a power of attorney prepared by an elder law attorney may be drastically different from a power of attorney prepared by an attorney who only does estate planning.  The power of attorney prepared by an experienced elder law attorney will contain special provisions allowing your agent to engage in all aspects of Asset Protection Planning and Public Benefits Plannings on your behalf, including the ability to make unlimited uncompensated transfers in an effort to protect your assets from the forced liquidation that might otherwise be required if you were to enter a nursing home.

Must third parties honor a power of attorney?

There is no way to force a third party to accept a power of attorney without going to court. Many banks will require you to complete their own forms to authorize your agent to write checks on your account, so it is advisable to inquire as to whether your banking institution requires such forms that can be completed in conjunction with executing a power of attorney. In addition, the IRS generally will not honor any power of attorney that does not specify the tax matter and the tax year at issue.

Are there disadvantages of a power of attorney?

First, third parties may not recognize your power of attorney, especially if it is more than a year old. Second, it can be difficult to revoke a power of attorney, especially if your agent has given copies to third parties that have honored it. Third, the agent can reach your assets without court approval or supervision. Therefore, it is imperative that you select an agent with great care and have tremendous confidence in that individual.  It is also important that you re-sign your power of attorney every year, even if you are not making any changes to the document.  This way financial institutions will be much more likely to accept it when needed.

Are there alternatives for managing property when a person becomes incapacitated?

There are several. One a court-supervised proceeding referred to as a guardianship or conservatorship. This is not an appealing option to most people. One type of alternative is the use of a living trust where assets are funded into the living trust.  However, a power of attorney is still essential even if you have a living trust.

What is a guardianship or conservatorship?

This is a court supervised proceeding which names an individual or entity to manage the affairs of an incapacitated person. A guardianship may also include the duty to care for the incapacitated person.

What are the disadvantages and advantages of a guardianship?

A primary disadvantage to a guardianship is that it is a public proceeding, thereby exposing the incapacitated individual to embarrassment as the details of their incapacity are discussed at length. It is also expensive, and is a restrictive procedure. In addition, there is no guarantee that the end result will be in accordance with the incapacitated person’s wishes, and someone unacceptable to the incapacitated person could be placed in charge of his or her affairs. A major advantage to a guardianship is that the courts watch every move the guardian makes in relation to the assets. Some feel this provides increased protection as well as establishing the authority of a guardian as third parties must deal with the guardian due to the court’s supervision.

Does a Revocable Living Trust provide asset protection?

During the lifetime of both spouses there is no asset protection provided by a revocable living trust. However, there may be some protection for the survivor after the first spouse dies. The trust can also be created to provide creditor protection for other beneficiaries of the trust.

What Type of Living Trusts do provide asset protection?

Irrevocable Living Trusts are designed to provide asset protection.  Click here for information about Evan Farr’s Living Trust Plus Asset Protection Trust.

What is a Living Will?

A living will, more often called an Advance Directive or Advance Medical Directive, is a document normally incorporated into a Medical Power of Attorney in which you give directions for life sustaining treatment should you become unable to communicate your wishes.

Why is a Living Trust usually better than a power of attorney?

A Living trust is often recommended to clients as the key document in their estate plan. One reason for this is that the living trust is normally the best method for managing assets during incapacity. A major advantage of the living trust over the power of attorney is that a trustee has actual title to the assets and therefore third parties must deal with the trustee as the owner. An agent does not have title and hence third parties may refuse to deal with the agent. This is a particular problem if the power of attorney was not signed in the last year, because some financial institutions refuse to honor powers of attorney that are more than a year old.

Why is an Irrevocable Living Trust often better than a Revocable Living Trust?

A Revocable Living trust only protects your assets from probate.  Evan Farr’s Living Trust Plus Asset Protection is an irrevocable asset protection trust that protects your assets from the cost of probate AND from creditor, particularly from the most likely creditor that we all face, which is the nursing home.

Why should I consider a Living Trust?

Not only does a Living Trust  provide for the disposition of your property (like a Will), but it also offers many other benefits, such as:

  1. Avoiding Probate During Life
  2. Avoiding Probate Upon Death
  3. Avoid Probate for Multiple Generations
  4. Holding Assets for Beneficiaries Indefinitely
  5. Avoiding Ongoing Probate
  6. Avoiding Estate Tax (if married)
  7. Eliminating Probate Tax
  8. Reducing Legal and Administrative Fees
  9. Providing Oversight by Family, not Court
  10. Privacy

In addition,   Evan Farr’s Living Trust Plus Asset Protection is an irrevocable asset protection trust that protects your assets from the cost of probate AND from creditor, particularly from the most likely creditor that we all face, which is the nursing home.

Will I still have control over my property if I establish a Living Trust Plus Irrevocable Asset Protection Trust?

Yes. While you are alive and mentally competent, you can be the trustee and have control over your property. You can buy, sell, improve, spend, change investments, or give away property just as you would without a trust. However, there are limits to how you can modify the trust.   Click Here for further information about Evan Farr’s Living Trust Plus

Who is the trustee of my Living Trust?

While you are alive, you may act as trustee. For married couples, either one or both spouses may act as trustee or co trustees. The successor trustee is an individual whom you designate to be in charge of your trust in the event of disability or upon death.

Who should be designated as successor trustee of my Living Trust?

You will need to designate one or more successor trustees. These can be individuals, such as family members, trusted friends, trusted professionals, or you could designate an institution, such as a bank or professional trust company. Individuals may predecease you, while an institution will (most likely) still exist at the time of your death. Institutions provide the benefit of experience in money management and trust administration, while family members and close friends are more “personal” and have first hand knowledge of your desires. If you choose an individual, the individual should have some business sense, or you might wish to name an individual and a professional trustee as co-trustees. The downside to co-trustees is the possibility of disagreement.

Can your law firm be the trustee of my living trust?

The Farr Law Firm is available to serve as Trustee or Successor Trustee of a Living Trust, and/or Executor of a Will and/or Agent under a Power of Attorney.  We do not have a minimum dollar amount limit, but we do have a minimum annual fee, and our firm is selective in the clients we choose to offer this service to.  Feel free to contact us via our Contact Form If you would like a copy of our Fiduciary Fee Schedule and Disclosure, which explains in detail our fiduciary fees and services.  You should consider and investigate all of the alternatives available to you before deciding whom to select as Trustee and/or Executor and/or Agent under a General Power of Attorney.

Will my income taxes change if I create a trust?

A properly drafted revocable Living Trust does not change your income tax liability.

Do property taxes change if I create a trust?

Generally, property taxes remain the same when real estate is transferred into a Living Trust, although laws vary from state to state and county to county. Applicable state law is determined by the location of the real property, and needs to be reviewed before any transfer is made.

What is the annual fee for a trust?

There is no annual fee associated with maintaining a trust. Fees are only involved when an amendment to the trust is made which involves changing the terms of the trust, or when a spouse passes away and the surviving spouse or trustee requests assistance with the Trust Administration, or requests assistance to take advantage of certain tax benefits, if applicable. However, we do offer an optional Estate Plan Protection Program — see answer to next question.

Do you offer an annual Retainer Plan for clients?

Yes — we offer an optional Estate Plan Protection Program, which is a membership program for our clients which allows clients to pay an annual fee in exchange for: (1) Up to two thirty minute legal consultations, by phone, email or in person, with an estate planning paralegal in the firm and, if required, up to two additional fifteen minute consultations with an estate planning attorney in the firm, to discuss the need or desirability for possible modifications to your estate planning documents; and (2) preparation by the firm of new and/or amended basic estate planning documents once within said twelve month period, for any legitimate reason that you may desire, or when required or desirable due to changes in the law.

How do I fund my trust?

Funding a trust entails transferring assets you own as an individual into the name of your trust. For some assets, our law firm makes the transfers and prepares the documents for you to sign, for example, real estate. For other assets that our law firm is unable to change for you, we will give you instructions as to how title is changed, and will provide you with the necessary paperwork. For example, to fund your trust with bank accounts, a letter is prepared for you to take to the bank to change title of your accounts. You will have to go to the bank in person to sign a new signature card as trustee of your trust.

Are any assets left outside of my living trust?

Although there’s nothing wrong with having your checking account in the name of your revocable living trust, some individuals like to have just their name on the checks. You can do so even if the account is in the trust, or you can simply choose to leave a small checking account outside of the trust. Other assets which are not funded into the trust are IRAs and pension plans, since moving these would be taxable events. It is important is to coordinate the appropriate beneficiary designation with your overall estate plan. This is a complex area of planning and must be based on each person’s individual family circumstances and size of estate.  With the Living Trust Plus irrevocable asset protection trust, you would not put your checking account into trust, and would also keep out of trust enough assets to pay for current bills and expected future bills.

How is out of state real estate funded into my trust?

Out of state real estate is transferred into the trust by using a local attorney in that state working with our law firm. We will contact an attorney in the state where your property is located to have it transferred to your trust with a minimum of delay.

How are timeshares funded into a trust?

Timeshares are transferred based upon the type of ownership you have. Some time shares are a contract and are transferred to the trust by an assignment of the contract. Other time shares are a fee simple, which means you have absolute ownership. Therefore, it is transferred by deeding it to the trust.

If I transfer real estate to my trust can the bank call my loan?

Enacted as part of the Garn St. Germain Depository Institutions Act of 1982 (P.L. 97 320; 96 Stat 1501) a due on sale clause can not be enforced on a “transfer into an inter vivos trust on which the borrower is and remains a beneficiary and which does not relate to a transfer of rights of occupancy in the property.” This exemption applies to residential real property containing less than five dwelling units {12 USC Sec. 1701j 3(d)}. The regulations list that the borrower in this type of situation must remain the beneficiary and occupant of the property {12 CFR 591.5(b)(vi)}. However, “occupancy” is not defined. Therefore, prudence suggests notifying the lending institution before the transfer.

How do I know if my estate has enough liquidity?

Liquidity planning is part of estate planning. Generally, it is necessary to look at the estate and see if there is enough cash to pay taxes, administrative expenses, and support dependent family members. There are generally two ways to deal with the liquidity issue, either by reducing taxes and expenses which require cash, or by increasing the cash and liquidity of the estate. Techniques which reduce taxes include fully using the Applicable Exclusion Amount at death and making annual gifts. Other techniques which reduce expenses include avoiding probate and using a Living Trust. Of course, increasing the liquidity of the estate can be done through conversion of assets as well as life insurance.

What is a Living Will?

A living will, more often called an Advance Directive or Advance Medical Directive, is a document normally incorporated into a Medical Power of Attorney in which you give directions for life sustaining treatment should you become unable to communicate your wishes.

Do you offer Wills Seminars, Trust Seminars, and Asset Protection Seminars?

Yes, we offer these seminars regularly.  Please click here for more information or to register online for one of our upcoming seminars.